Friends of Grasslands

supporting native grassy ecosystems

PO Box 440
Jamison Centre
Macquarie ACT 2614

email: advocacy@fog.org.au
web: www.fog.org.au

Manager — Natural Environment
ESDD
GPO Box 158
Canberra ACT 2601
email: environment@act.gov.au

Dear Sir/Madam

ACT offsets policy

Friends of Grasslands (FOG) is a community group dedicated to the conservation of natural temperate grassy ecosystems in south-eastern Australia. FOG advocates, educates and advises on matters to do with the conservation of grassy ecosystems, and carries out surveys and other on-ground work. FOG is based in Canberra and its members include professional scientists, landowners, land managers and interested members of the public.

FOG welcomes at last the release of the draft ACT offsets policy. When FOG representatives met with Minister Corbell in December 2009, we were advised then that the offsets policy was being worked on but would not be available for public comment earlier than the middle of 2010.It is well overdue, given many decisions have been made that have included a range of offsets, some of which we consider may not meet the guidelines in this draft. We welcome the opportunities provided by TAMS staff to brief members of the public in this matter, and the frank discussion about concerns expressed by participants in these events. 

As a primary principle, FOG’s believes that there should be no development that impacts on vulnerable or endangered species’ habitat or ecosystem communities, and it opposes the use of offsets in these circumstances. However, recognizing the reality of the current situation where offsets are mandated by government for the destruction of native vegetation, FOG has provided comments on the proposed ACT offsets policy in an attempt to achieve the best conservation outcome. These comments should not be taken as support for the concept of offsets as a way of allowing developments to impact on vulnerable or endangered species or ecosystems.

Statement of principles

In general, FOG is disappointed that the position paper does not include a clear articulation of the ACT’s offset principles, including and especially a principle to achieve ‘no net loss’. The Commonwealth, for instance, gives a clear set of offset requirements in its “EPBC Act Environmental Offsets Policy”, and most other jurisdictions have done the same. The ACT position paper, on the other hand, in the section titled “ACT Offsets Policy” merely lists the endangered species and communities that are matters of NES or that are listed as ACT threatened species, with some very general principles for the Conservator to consider at the end – basically that an offset package “must deliver an overall positive conservation outcome….. and improves or maintains outcomes for the species’ habitat” – no statement of no net loss for the species itself. It also lists matters to be considered for offset sites (making frequent reference to the EPBC policy for matters of NES). Overall, the paper lacks a clear statement of the principles the ACT government proposes to use in determining offset requirements. This is surprising in view of the length of time FOG is aware that the government has been considering this issue. While FOG would expect that the ACT’s biodiversity offset principles might be quite similar, if not identical, to the EPBC principles, the ACT’s policy on biodiversity should be a stand-alone document. Without such a clear articulation of the principles, it is difficult to give complete feedback on the community’s views on this policy, or for the community to understand fully the implications of the policy.

Additionally we believe that it needs to be clarified up front that this offset policy does not relate to Commonwealth land in the ACT.

Application of offsets and loss of Natural Temperate Grassland (NTG)

Many NTG sites are quite small and most occur within the urban framework of Canberra, i.e. are prime development land. FOG has major concerns about the application of the offset policy to NTG sites. One concern relates to whether or not offset calculators can be applied appropriately to such small sites, given that the EPBC calculator is generally used for larger areas of land containing other vegetation, such as woodlands and forests.

An associated concern relates to the decline that we and others have noticed in NTG sites around the ACT, due to insufficient management, with subsequent approval of the site for future development. Campbell 5 is a case in point. In his recent report to the ACT’s Commissioner for Sustainability and the Environment, Dr Kenneth Hodgkinson concludes that “The generally poor condition of the remnants of Australia’s most threatened natural plant community in Canberra is of concern and the ACT Government should allocate more resources, especially for weed and fire management, to secure a future for this natural capital and quintessential grassland of Canberra.” Dr Hodgkinson goes on to state that “These grasslands are now at sub-marginal levels in the ACT and there should be no offsets of this threatened community in land development.

FOG agrees with Dr Hodgkinson’s statement,, that given the parlous state of this community a better legacy for future generations would be to conserve them all in good condition. We further elaborate on this and consider that all NTG sites should be included as Advance Offsets.

Specific comments

The following comments relate to specific parts of the two documents. Note that some of these comments apply to multiple parts of the documents – we have only covered them in one place for the most part.

ACT Environmental Offsets Policy and Delivery Framework: Position Paper

Page 3 – ACT threatened species

There is reference to the EPBC Act requirements for offsets being sufficient for any ACT threatened species. Whether or not this is the case surely depends on the level of the listing in the two jurisdictions, i.e. whether species or communities are listed as critically endangered, endangered or vulnerable. FOG’s view is that the offset calculation providing the highest gain for the environment should always be used, given the uncertainty surrounding the effectiveness of offset outcomes at this point in time.

Page 5 – Direct offsets

FOG supports a minimum of 90% of offset packages to be direct offsets. Indirect offsets such as research and education campaigns, while very important, do not necessarily give a positive result in the long term. For instance, a piece of research may give a negative result, e.g. that a particular endangered species cannot be translocated. This is important information to have, but the net effect across the landscape is that the species has disappeared both from the site initially being developed and from other sites developed subsequently but before the research results are available.

A second concern about this paragraph is that it only refers to matters of NES. FOG’s view is that the minimum of 90% direct offsets should apply to all ACT threatened species.

A third concern relates to the sentence “For example, transferring an area of developable land which contains BGW into the reserve network and improving its condition would be considered a direct offset for an action that is significantly impacting on another area containing BGW (like-for-like).” FOG considers that adding offset areas to the reserve network is essential, as it removes most (although not all) future development threats. However, by itself this is not an adequate offset; given that another site is being destroyed, the effect across the landscape is a net loss of the endangered species or community. Reserving land must always be accompanied by a) a commitment to improve the values of the land in the short term, and b) resources to ensure adequate long term management of the land. As budgets for reserve management have been cut in recent years, staff managing reserves cannot be expected to maintain the values of areas being added to reserves without long term funding that is exempt from cuts in future budgets.

P5 – Indirect offsets

If research is part of an offsets package, FOG’s view is that it must be long term research that is likely to be of benefit in managing or restoring endangered ecosystems or increasing endangered species populations, i.e. research should only be considered if:

a.       Research proposals are specifically directed at species or ecosystem recovery, and obtaining practical management information leading to enhanced conservation of grasslands and grassy ecosystems.

b.      A valuable component of an offset may also be implementation of well-designed trials to determine and then apply best practice management directly to the offset sites, as well as other sites.

P5 Matters to be considered for offset sites – point 1:

We do not believe that we can fully understand the extent to which impacts are compensated for, without demonstrations of the assessment tools. We request that FOG and others be given opportunities to have demonstrated and to try out these multiple tools to see what different outcomes are achieved using different tools (this also relates to pp. 8-9, Tools for assessing offsets).

P5 Matters to be considered for offset sites – point 2:

FOG has significant concerns about proper measurement of “averting the future loss, degradation…” of an offset site. It would be very easy for this to be inflated or misrepresented, to the benefit of the proponent. As well it begs the question of duty of care if the offset site is on public land. Offsets should be in addition to the management of higher value conservation sites on public land. If a site is of sufficient conservation value to be considered an offset (presumably with some regeneration needed), then doesn’t the landholder or land manager have a responsibility to protect that site anyway? Losing one area and averting possible future loss on another results in net loss across the landscape, which is contrary to the concept of offsets (although not stated as a clear principle in this policy document).

The second sentence states that “Conservation gain is assessed using assessment tools such as the ACT EOC or Commonwealth OAG and would often be outlined in Offset Management Plans”. In FOG’s view, this should read “…and would always be specified in detail in….”. If the assessment tools are not included in an Offset Management Plan, what assurance do we have that it will actually occur?

P7, Box 2 Stages in offset assessment and administration

FOG supports the monitoring and evaluation in points 7 and 8. However, it is concerned about what happens if compliance does not occur. There is no mention of enforcement or actions to be taken for non-compliance in these stages.

Another concern is the type of audit. A desktop audit of whether or not all reports have been submitted is in itself insufficient. Audits need to include content and whether or not actions on ground have achieved specified conservation outcomes.

P8 – Tools for assessing offsets – ACT Environmental Offsets Calculator

There is no information given about how the ACT Environmental Offsets Calculator (EOC) works. The position paper advises that it will be made publically available, but until this is done or more information is made available about its methodology, FOG can have no assurance that it will be an effective measure, particularly for the small but important NTG sites in the ACT to which it will be applied.

The third paragraph in this section is unclear. The third sentence states about the EOC that “While it can inform strategic assessment processes, it is not as useful in this type of process...”, while the fourth sentence says that “The ACT EOC does not deal with avoidance and mitigation measures and so should only be used to inform strategic assessments”. The first sentence in the next paragraph then goes on to say that “The benefit of using the EOC is that a range of thresholds for individual species…”. Is the EOC meant to apply to individual species? Can it be applied to ecological communities? Can it be used for strategic assessments? What are the situations where it can and cannot be applied? Further clarification of the different uses of the tools would be beneficial.

It is not at all clear what the Environmental Offsets Assessment Methodology (EOAM) is. The fourth paragraph mentions that it “is based on sound ecological principles, current threatened species listings, and native vegetation data”. What are these principles? What native vegetation data? Why won’t it be as useful for strategic assessments? When will the community find out about all of this?

While strategic assessments are more complicated and may need a different approach, there still needs to be a clear methodology about how offsets are calculated, with consultation with the community about the basic assumptions being made.

As mentioned previously we request a demonstration of the use of the multiple offsets calculator tools.

P8 – Tools for assessing offsets – Commonwealth Offset Assessment Guide

The community has no training in the use of the Commonwealth OAG. It appears to be quite sensitive to some of the input parameters, leading to concerns that these may be manipulated by proponents to their advantage. The information about assumptions and selection of input parameters provided to the community in documentation available for public comment is often insufficient to allay our concerns in this regard. In particular, because of the small size of important and viable NTG sites, FOG is uncertain as to whether the use of these calculators is appropriate in the way it might be for larger communities such as woodlands or forests.

P9, section 6.3 – Conditions of approval

Under the section ACT listed threatened species there is reference to the Conservator supplying advice about offset packages but no commitment at all to take this advice. There should be a sentence similar to the second sentence in the preceding section (Matters of NES), giving some assurance that the Conservator’s advice will be followed. This is particularly important in the situation we have in the ACT where the government is often the proponent and the decision maker, as well as the entity responsible for conservation matters – a clear conflict of interest. There is also no reference to ACT offset principles in this section (not surprising, given the lack of clarity of what these principles are).

Another concern is that the Exposure Draft of the Nature Conservation Act (a document FOG recently commented on together with the Conservation Council) made no mention of offsets in the role of the Conservator. Will this draft be amended to include this important function in the role of the Conservator?

Given that under the ‘One Stop Shop’ ACT listed species (where they are not listed under the EPBC Act) will effectively be treated the same as Commonwealth listed species, there should be no discrimination between conditions of approval for MNES as compared with non-MNES. This does not appear to be the case as outlined in this section.

P9, section 6.4 – Securing offset arrangements

What type of funding arrangements are being considered? FOG’s view is that, if money (e.g. for research or management) is part of an offset package, it should be placed in a trust fund. This would allow for:

a.       Employment of an expert bush management team to undertake management and rehabilitation of offset conservation areas or to work with landholders who have conservation agreements or government managers;

b.      Combination of funds from several smaller offsets into something large enough to fund a major project and make a significant impact on conservation outcomes; and/or

c.       Stewardship-type payments to be made to private landholders where their land is used as an offset

P10, section 6.6 Environmental Offsets Working Group

The development of an Environmental Offsets Working Group is supported. However, we would like further clarification of who is on this working group, and the qualifications of the members of this group to ensure they have the skills and knowledge to plan and implement environmental offsets. The five roles identified are all related to management of the projects, not the outcomes. It is not clear whether their role is in any way related to the effectiveness (i.e. ecologically) of the offsets. What are the terms of reference for the working group?

P10, section 6.7 – Monitoring

What monitoring is to be done? This information needs to be made public - monitoring needs to effectively measure ecological outcomes, with the methods used to monitor, and the results being peer reviewed.

Who is to do the monitoring? Given the Government’s conflict of interest (being proponent, manager and enforcer), transparency in monitoring processes and results is important to ally the community’s concerns about the efficacy of offsets. One option might be for the Commissioner for Sustainability and the Environment to have a bigger role in monitoring offset outcomes.

P10, section 6.7 – Compliance

What are the provisions in the Planning Act that are proposed to be used to enforce offset provisions? As this Act does not mention offsets, how can existing provisions be applied to offsets? What changes to the Act will be made to ensure that these provisions can be used?

How can the Nature Conservation Act provisions be used for enforcing offsets when the Act doesn’t mention offsets? While provisions of this Act can be applied to any offset area placed in a reserve, how can they be used to ensure that offset requirements are met in the first instance?

P11, section 6.8 – Reporting

Once a development has been completed, most proponents move on to other projects, or for other reasons may not be around to continue long term reporting and monitoring. However, offset packages usually take a number of years to meet criteria when rehabilitation is involved. How will long term monitoring and reporting of offset sites occur in such situations?

P10, section 6.8 – Review

It is identified that new species may be listed, but there is no mention of the possibility that additional ecological communities may be listed. It is not clear what changes would be required if new communities are listed.

As with monitoring, reporting, review and evaluation need to be undertaken in as transparent a way as possible, given the Government’s conflict of interest. Again, this would be best undertaken by an independent body such as the Commissioner for Sustainability and the Environment.

P13, section 7.2 – Planning and Development Act 2007

Point 2 under the proposed legislative changes mentions limiting the Conservator’s advice to certain aspects of the appropriateness of offsets. What does this mean? The Conservator should be free to provide whatever advice he/she thinks is needed on the ecological, scientific and conservation aspects of offsets.

Point 4 allows the Minister of the day to override the Conservator’s advice, based on a section of an Act that was drafted before the question of offsets come into being. Our concern with this is that section 261 of the Act makes mention of “a market value lease”, i.e. part of the definition of “in the public interest” is saleable land, or land that might accrue income for the Government. There is no mention of long term environmental or conservation interests that would also be “in the public interest”. If the argument is that these should be in the Nature Conservation Act rather than the Planning and Development Act, our argument is that environmental offsets themselves should be in the Nature Conservation Act not the Planning Act.

P14, section 7.3 – Nature Conservation Act 1980

As stated previously there is no mention of offsets in the draft Nature Conservation Bill. This will need to be remedied. The statement “Once offset sites are agreed, the provisions in the Nature Conservation Bill 2014 may apply to offset sites”. We submit that the provisions of the Bill must apply to offset sites, or clear information provided as to why they may or may not be applied.

Attachment A

Without referring to the Commonwealth offsets policy papers it is not clear what are the offset requirements for species and communities listed under the EPBC Act. We recommend that this be attached to the policy paper, and be amended as required.

ACT Environmental Offsets Draft Guidelines

Guideline 1

One concern FOG has with this guideline is the frequent reference to outer impact zones being in offset areas. While the ACT Strategic Bushfire Management Plan does take account of conservation concerns where possible, there can be conflict between bushfire management and conservation management. There is reference to discounting offset values because of fire management. If this situation arises, this definitely needs to occur at the time the offset package is developed. However, outer asset zones should not be in high conservation areas of natural vegetation, including offset sites, thus avoiding the problem. This issue is being addressed in the review of the Strategic Bushfire Management Plan, and these two documents need to be consistent.

There is reference to consideration of Parkcare/volunteer effort being taken into account in setting baselines. This issue is similar to that of the duty of care issue – offsets should always be in addition to existing duty of care or volunteer activity. In addition, it is inappropriate to rely on factor in volunteer activity in any rehabilitation of offset sites.

In this context, FOG supports the inclusion of reference to needing to demonstrate that any offsets applying to existing conservation areas (pages 3 and 4) are in addition to existing areas.

Guideline 2

FOG welcomes the opportunity to protect leasehold land through voluntary application of offsets, thereby increasing the opportunities for protecting extensive areas of threatened communities and associated species outside the unleased land bank. Adequate resources need to be provided to ensure lessees can achieve enhanced ecological outcomes (see our point under section 6.4 above). We do not believe that Land Management Agreements, as they currently operate, provide an appropriate mechanism for such agreements. The outcomes of these offsets need to be reviewed as rigorously as if they were on public, unleased land. We also believe that there needs to be provision for applying offsets on other unleased land that may not result in reservation. This includes some roadsides (e.g. on Tidbinbilla Road), Hall Cemetery and, particularly important for NTG, open space within the urban area.

Guideline 4

See comments under Guideline 1.

Guideline 5

FOG supports the concept of Advanced Offsets, as long as funding to manage and improve (not just maintain) these areas is provided at the time of identification as Advanced Offsets. We believe that such offsets should work to protect core areas of high conservation value from future development or neglect.  However, we do believe that Advanced Offsets are not appropriate for areas that are already within the nature reserve system, even if they are to be subjected to higher levels of enhancement (e.g. restoration).

Conclusions

FOG is disappointed that the ACT offsets policy, as presented in the position paper, is vague, relies heavily on the Commonwealth government’s policy concerning matters of NES and discriminates between MNES and ACT listed species (and potentially ecological communities).

FOG’s view is that the ACT offset policy should include a number of explicit guiding principles for the delivery of offsets, such as the following:

•         Offsets should be within similar habitat to that being lost, i.e. “like for like”.

•         Offsets for losses within the ACT should also be within the ACT if possible.

•         Offsets should primarily be for land protection, improved management and enhanced conservation outcomes.

•         Government should take advice from or refer offset proposals to an independent expert body to assist in determining the offset’s suitability.

•         Offsets should be aimed at ’net gain’, not maintenance of the status quo.

•         Offsets must be supplementary and not substituting for already existing commitments.

•         Offsets should be in place before the development commences.

•         There must be a process, with oversight by experts, in place to track each offset and take corrective action if needed, with penalties must be included in an offset agreement and applied for non-compliance.

•         The cost of compliance must be recognized as part of the cost of the offset.

•         A properly formulated management plan must be in place for any land in an offset package, with the land managed according to “bush regeneration” principles and rehabilitation being done to an acceptable standard.

•         A review by an independent body is required to assess compliance and achievement of conservation gains as identified in the offset agreement.

In addition, FOG’s view is that the ACT offset policy should state that NTG sites will not be developed and therefore will not need to be offset. This could be achieved by identifying all unsecured areas as Advanced Offsets, so that they are clearly protected from development.

Yours sincerely

 

Sarah Sharp
President

10 July 2014